Florida First DCA rules that dangerous instrumentality doctrine did not extend liability to decedent's estate based on implied consent of nominated but not yet appointed personal representative

By
Sands, White & Sands, PA
|March 01, 2017

On February 21, 2017, in
Depriest v. Greeson, No. 1D16-0807, the Florida First DCA was presented with the question whether
in the gap between a decedent’s death and the appointment of a personal
representative, Florida’s dangerous instrumentality doctrine makes
the estate vicariously liable for damages that the decedent’s child
allegedly caused while driving the decedent’s car. The trial court
had granted summary judgment to the estate on the grounds that estate
was not the title holder to the vehicle at the time of the accident. The
First DCA rejected this analysis, concluding that the car became an asset
of the estate at the moment of the decedent’s death, but upheld
the summary judgment on the specific facts of the case.

The First DCA noted that Florida’s dangerous instrumentality doctrine
is a creature of common law that “imposes . . . vicarious liability
upon the owner of a motor vehicle who voluntarily entrusts that motor
vehicle to an individual whose negligent operation causes damage to another.”
Aurbach v. Gallina, 753 So. 2d 60, 62 (Fla. 2000) (citing
S. Cotton Oil Co. v. Anderson, 86 So. 629, 638 (Fla. 1920) (On Petition for Rehearing)). An owner voluntarily
entrusts a vehicle to another when it gives that person authority to operate
the vehicle by “either express or implied consent.” Id. (citing
Hertz Corp. v. Jackson, 617 So. 2d 1051, 1053 (Fla. 1993)). The First DCA noted that the decedent’s
daughter, who was driving the car at the time of the accident, had no
ownership interest in the car and there was no evidence to find actual
consent by the nominated but not yet appointed personal representative
because he did not even know that she had access to the car.

The Court pointed out that while a nominated or putative but not yet appointed
personal representative has the legal authority to act for the benefit
of the estate prior to appointment, he or she is not statutorily required
to do so. The Court held that because the nominated personal representative
had no legal duty to prevent the decedent’s daughter from using
the car, the doctrine of implied consent was inapplicable. However, the
Court went on to elaborate an additional basis for concluding that there
was no implied consent, focusing on the lack of interaction between the
nominated personal representative and the daughter. Citing
Ming v. Intramerican Car Rental, Inc., 913 So. 2d 650, 656 (Fla. 5th DCA 2005), the Court noted that most vehicle
cases involving implied consent examine factors such as what a car owner
knows about the driver’s prior use of the vehicle, the location
and accessibility of the keys, the nature of any familial relationship
between owner and driver, and the conduct of the parties after an accident
occurs. The Court concluded that weighing these factors, including the
fact that the nominated personal representative testified that he had
no knowledge that the daughter ever had permission to drive the vehicle,
implied consent was not proven in the case.

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